THE FUTURE OF THE COUNTY COURT.
“Had I God’s leave, how I would alter things!”
—Robert Browning.
The County Court like the poor in whose interests it was invented is always with you if you have one of those perverted minds that wastes its moments on dreams of legal reform. Seventeen years ago I studied the question with earnest enthusiasm under the strange hallucination that it was a real business question ripe for a business solution. It seemed to me nearer to the lives of people than the Veto, or Tariff Reform or the Ornaments Rubric. That is the result of leading a narrow self-centred life. In a word, without knowing it, I must have been a Whig, for, as Sir Walter Scott remarks, “Whigs will live and die in the heresy that the world is ruled by little pamphlets and speeches, and that if you can sufficiently demonstrate that a line of conduct is most consistent with men’s interest you have therefore and thereby demonstrated that they will at length after a few speeches adopt it of course.” Thus for many years I have pegged away with papers and speeches and like a true Whig find myself still hopefully at it, playing the same game perhaps but with slightly increased handicap. To-day I have learned by experience that the future of the County Court is not to come in my time and to doubt if I shall ever climb into some sufficiently high place to see the promised land that I shall certainly never enter.
I have come to regard the question with the same child-like affection and belief in its possibility, but also in a sense archæologically, as becomes one whose first childhood is but a dream and who feels himself pausing on the threshold of a second. Had I any political foresight seventeen years ago I should have recognised that the reform of the County Court system is not a party matter, it is eminently a matter of greater interest to the poor than to the rich, to the business man than to the man of leisure. Now, more and more, Parliament has become a machine for registering the decrees of the prevailing party and one cannot find that the poor are in any way directly represented in Parliament and business men only in a small degree, whilst the interests of the rich and of men of leisure have an overwhelming representation. Moreover Legal Reform has to fight for its hand against that band of brothers, the lawyers in Parliament, who from generation to generation we find stalwart and faithful in their clear-sighted optimism that all is well with the law—and lawyers.
The story of the evolution of the County Court is not without entertainment for those who are interested in the practical affairs of the community. In its struggle for existence we find a warfare being carried on between the business man and the lawyer in which, foot by foot, the business man gains and places his pet tribunal in a more secure position whilst he takes breath for a new encounter. Still, although the building up of the County Court to its present story of usefulness has been the work in the main of business men, yet few realise that the County Court of to-day with its £100 jurisdiction is only a belated attainment of the ideals of Lord Brougham in 1830. It was in that year that Brougham brought in a Bill in the Commons—he was then member for Yorkshire—to establish “Local District Courts,” with a jurisdiction limited to £100 in contract, £50 in injury to person or property, and an unlimited jurisdiction by consent. It has taken us seventy-five years to arrive at the position that was thought practicable by a great reforming Chancellor in 1830. And yet there are many Englishmen in daily terror lest we should reform anything too hurriedly. Lord Brougham’s ruling idea was free law. He was in a sense a legal socialist. Law to him was one of those things that every member of an ideal community should have without paying for it individually, like fresh air and sunshine, and the Church of England and the British Museum, and gaslight (in urban streets), and roads, and the police, and the education of your children—all which things an English citizen is entitled to have to-day without the payment of any fees. He admitted the over-ruling necessity of fees in his day, owing to the poverty of the Exchequer, but he said, “he must enter his protest against the principle, and insist that any tax no matter what, for the purpose of drawing the payment from the public rather than from the suitor would be better than fixing it on legal proceedings.” Free law is, of course, a grand ideal, and may again attract legal reformers; but, without attaining that ideal, it might be possible to abandon in a great measure the fees collected from poor suitors. Law, like medicine and surgery, might be free to the poor—not merely to paupers, but to all who are unable to pay fees and costs without running into debt. It will take a Savonarola to convert the Treasury to this view, but it is an enticing subject for a youthful legal missionary full of ardent zeal and possessed of what the insurance world calls “a good life.”
The dramatic duel between Lord Brougham and Lord Lyndhurst over the former’s Bill in 1833 is full of historical interest, but Lord Brougham was unsuccessful, and it remained for Lord Cottenham in 1847 to establish County Courts with a jurisdiction of £20. These are the Courts that we use to-day, with an enlarged jurisdiction up to £100 in common law, £500 in equity matters, and the added jurisdictions given by the Workmen’s Compensation Acts and many other statutes which have chosen for their tribunal the County Court.
Throughout the country we are face to face with two statistical facts which, if our reforms were moved by scientific considerations, would lead the legal reformer to turn his serious consideration to the County Court. We find in the great centres of population in the north and the midlands, firstly, that there is a slight shrinkage or perhaps only stagnation in the world of the High Court, and secondly, that there is a continuous increase of business keeping pace with the growth of population in the County Courts. I am far from saying that all the expansion of County Court work is progress—much of it is the reverse and in order to understand how far it is good and how far it is bad, it is worth while trying to understand what the County Courts do.
These Courts lead as it were a double life. They have extended their energies along two different branches of business. Each Court has become a huge debt-collecting machine for minor tradesmen and at the same time has developed into an important and trusted tribunal for deciding disputes between citizens. Both these functions are important ones, but the two branches have nothing to do with each other. In the debt-collecting branch the cases are, for the most part, undefended; in the other branch the cases are nearly all fought out. In the first branch the judicial work is unimportant, the machine works automatically; in the second branch the vitality of the Court depends almost entirely on the quality of the judicial work.
In considering the future of the debt-collecting branch of the Court it will be necessary to consider the whole question of imprisonment for debt, which is the ultimate sanction of the business. The point to be considered is, I think, How far is it right for the State to provide a machine to collect the class of debts that are, in fact, collected by the County Courts? The point is a practical one, for if imprisonment for debt were abolished or mitigated, a great deal of the work of the County Courts would undoubtedly fall away, leaving reasonable time at the disposal of the Courts to try cases under the present extended jurisdiction, and possibly making room for a further extension, if that were thought desirable.
Let me try and describe the present system in a few words. A grocer, draper, or jeweller hands over to a debt-collector a large number of debts to collect; the customers are, from a business point of view, the “undesirables.” The debt-collector makes some effort to collect the debts outside the Court, and then issues a batch of summonses against all who are or pretend to be impecunious. It is no uncommon thing for one collector to issue a few hundred summonses in one day. On the day of trial the cases are either undefended, or the wife appears and consents to judgment, and an order is made of so many shillings a month. The defended cases are, I should say, less than five per cent. of the total summonses issued, and those successfully defended are a negligible quantity. In Manchester and Salford, where we used to divide this class of work from real litigation, the lists were seldom less than 400 cases a day. When the judgments are obtained, the duty of the defendant is to pay the monthly instalment into Court, and a ledger account is opened, the Court becoming a sort of banker for the purpose of collecting and paying out the money. Whenever the debtor fails to pay an instalment, the collector is entitled to take out a judgment summons, calling on the debtor to show cause why he should not be committed to prison for non-payment. On proof that the debtor has means to pay, or has had means since the judgment, the judge’s duty is to commit him to prison.
Two things are clear about this system. It is not a system of deciding disputes, but a system of collecting debts, and in the cases of workpeople without property it could never be carried out without imprisonment for debt. When the legal reformer looks at the figures relating to imprisonment for debt, he will see at a glance that if he could get rid of a large quantity of the debt-collecting, there would be more time for the real litigation. Many people still seem to think that imprisonment for debt is abolished. In France and the United States and in most civilised countries I believe it is, but in England it is not only not abolished, but is greatly increased. The actual number of debtors imprisoned has recently decreased, owing no doubt to the fact that Judges are more and more inclined to temper the wind of the statute to the shorn lamb. But the number of summonses issued and heard increases, and there is no doubt the credit habit grows upon the working classes, and is encouraged by the system of imprisonment for debt. In 1909, the last year of statistics before me, no less than 375,254 summonses were issued. It is the commercial and domestic waste which lies hid in these figures that distresses me. They reduce me to the despair of those two immortals, the Walrus and the Carpenter, who
“Wept like anything to see
Such quantities of sand.
‘If this were only cleared away,’
They said, ‘it would be grand.’”
But ought it to be cleared away? In the main I think it should. One might lay down the principle that where the debt was not necessarily incurred the State should not assist the creditor to collect it by imprisoning the debtor. For the system is used, in the majority of cases, by a very undesirable class of creditor. I analysed a list of 460 summonses heard by me in one day. There were 284 drapers and general dealers. These include all the instalment and hire system creditors. There were sixty jewellers, thirty-five grocers, twenty-four money-lenders, and ten doctors. Now, with the exception of the doctors, and possibly in a few instances the grocers, it was not in the least desirable, from the point of view of the State, that these debts should be collected at all. Why should taxes be imposed and work done at the public expense to enable a jeweller to persuade a man to buy a watch he does not want? Why should the State collect the jeweller’s money for him by imprisonment for debt? If there had been no imprisonment for debt the jeweller’s business wouldn’t pay, and the workman would have one chance less of mortgaging his wages for the immediate delight of possessing a third-rate piece of jewellery. This would be better for the State and the workman, and for everybody but the jeweller. But why should his interests prevail over those of the rest of the community, and why should we spend money in promoting a business of which most of us disapprove? Everyone must have noticed of late years the enormous growth of firms whose main business seems to be to tempt people of small means to purchase things they do not want, or, at all events, cannot afford. Take up any newspaper or magazine circulating among the lower middle classes, or among working men, and you will find it crowded with advertisements of musical instruments, cycles, furniture on the hire system, packets of cutlery, all of which can be obtained by a small payment down and smaller instalments to follow. Remember, too, that over and above these there exists a huge army of “tally men” and travelling touts, who are pushing on commission, clothing, sewing machines, Family Bibles in expensive series, jewellery, and a host of unnecessaries. What chance has the working-man to keep out of debt? Not one of these transactions has any commercial sanction. Credit is given merely because there is imprisonment for debt. And there is a further aspect of this question which I am surprised has never attracted the attention of temperance reformers. As long as a man can get credit for groceries and clothes there is not the same urgent reason to spend his cash upon these things. But cash is necessary in the public-house, because, by the Tippling Acts, no action can be brought for the price of drink consumed at a public-house. So the obvious result too often follows: the wages are spent at the public-house, and the credit for the week’s groceries and the children’s boots is obtained under the sanction of imprisonment for debt.
Much more might be said in objection to the system of imprisonment for debt, but we have enough before us, I think, to show a strong case for reform. The next question will be: Should that reform be abolition? Although I am personally in favour of the abolition of imprisonment for debt, I am in doubt whether it is desirable at the moment; and I am so eager to see some reform that I would welcome any measure, however meagre, that did something to mitigate the misfortunes of the insolvent poor. I have suggested as a practical measure that no summons should be issued or committal made for a less sum than forty shillings. One must remember that there are a huge number of traders giving reasonable credit to their fellow-traders, who find, when they seek to recover the debt, that the goods in the house or shop are in the wife’s name. This is really a quasi-fraudulent obtaining of credit, and there are many similar cases not within the criminal law where imprisonment for debt seems a natural remedy. Moreover, if one studies the evidence given before the Commissioners on the subject, and if one discusses it, as I have, with men in business, one finds that abolition would meet with great opposition from powerful trade interests, whereas the “forty shilling” proposal is generally regarded as a fair experiment, which would injure no one but traders who deliberately give credit to the poorer working class under the sanction of imprisonment for debt. In my own experience, I have found hardly any cases of judgments summonses taken out for more than two pounds where there was not ample evidence of means, and where the non-payment was not more or less of the nature of a contempt of Court. In the smaller cases the means, though proved to have existed since the judgment, have disappeared, and the debtor is only saved from imprisonment by the leniency of the Court. Total abolition of imprisonment for debt would probably never be carried by consent. It would mean more commissions, inquiries, reports, and the waste of time that these things necessitate. Abolition of imprisonment for debt for sums under forty shillings—a great practical reform for the very poor—would, I believe, be carried by consent. That is why I put it forward. It is utterly illogical but intensely practical; and when one has been face to face with the misery of others for many years, one cares more for business than logic.
Assuming, therefore, that the future of the County Court as a debt-collecting machine is to be a future of decrease, that the legislature are going to save the taxpayer’s money and encourage thrift by refusing to collect undesirable debts, what will be its future as a litigating machine?
I may commend to anyone desirous of studying in further detail the arguments for and against the extension of County Courts, the proceedings of the Norwood Commission on County Courts in 1878. There is no doubt that if the business man had had his way the County Court in urban centres would have long ago been a district Court for all but cases of some peculiar public or legal importance. The great enemy to such an extension has always been the lawyer, and the London lawyer in particular. A very eminent solicitor, giving evidence before the Commission in 1878, had no confidence whatever in County Courts. His evidence was very typical, and shows how carefully one should criticise the evidence of a professional man who is also a very superior person. His view was that “When occasionally a client of mine of position who has been summoned to the County Court comes to me, I am unable to leave him in the lurch, but I never go into the County Court myself.” Asked whether he thought it “undignified,” he replied enigmatically: “It is not a matter of dignity, but a man of position cannot go into the County Court.” It turned out later that it was a physical difficulty, for it was “quite inconsistent with the position of a professional man to stand in the County Court with women bringing cases about washing-tubs, and servants summoning their masters for wages.”
He called them untaught knaves unmannerly
To bring a slovenly, unhandsome corse,
Betwixt the wind and his nobility.
Dozens of times, he told the Commission, barristers had declined to go into the County Court, and his clerk had gone to half-a-dozen barristers before he could find one who would demean himself by taking a case in the County Court. County Courts were, in his view, “inherently incapable of conducting important litigation.” The County Court Judges had not, in his opinion, the confidence of the country, because they are not taken from the successful members of the Bar, it is known that their salary is an extremely small one, there is no Bar attending before them, there is no report of their proceedings, and there are difficulties of appeal. One thing I find very delightful in the eminent solicitor’s evidence.
Question.—Some of the County Court Judges are very competent men, are they not?
Answer.—Extremely.
Question.—You think that there are some who are not equal to the others?
Answer.—Yes.
Question.—Is not the same thing true in regard to the Superior Courts?
Answer.—You will not expect me to answer that question, I think.
Even in the dark ages of 1878 one would have thought he might have risked an affirmative.
One does not quote the eminent solicitor’s opinion merely for the humour that attaches to old-fashioned ideas and prophecies that are brought to light in a new age and found to be absurd. No doubt he was fighting for a substantial thing, in a word—costs, and he was fighting the wreckers that wanted to break up the machinery that made costs, for he naturally disliked to see the smooth, well-oiled machine that worked so well for him replaced by some cheap machinery of one-horse “costs” power. In one thing I confess to his statesmanlike insight. If you want to improve the County Courts, he said, the “only improvement would be to double the salary of the judges at least,” and let the judge reside in his district, “but then you would be establishing superior Courts all over the country.” And the idea of the “country” having similar facilities to London for the trial of actions was too preposterous. It had only to be stated, it was self-condemned, and the matter dropped.
One must not suppose that there were no champions of saner methods in 1878. On the contrary, I think the reformers were the better team of the two, and pressed their opponents hard, although they did not score greatly in the end. What could be more interesting or important than the opinion of Lord Bramwell, who was concerned in several of the Judicature Commissions prior to 1878? His view was that the County Courts should be made constituent branches of the High Court of Justice, and that as a consequence of that, the existing jurisdiction in common law should be unlimited. That is to say every action would commence in the County Court and be tried there unless the defendant chose to remove it to the High Court. It was pointed out that this would practically mean giving to every district, local Courts with full powers, and among other things that it would lead to the “deterioration of the Bar.” Lord Bramwell objected to the phrase, and answered his opponents by saying that the then Attorney-General (Sir John Holker) and Mr. Gully and Mr. Pope and Mr. Higgins, one of her Majesty’s counsel, have belonged to the local Bar, “and I think I may say of my knowledge, that the local Bar of Liverpool is as good as the London Bar.” This is important testimony, inasmuch as any evolution towards district Courts that will injure the assize system is sure to be opposed by those barristers—and there are many in Parliament—who are interested in the assize system, and one argument will be that the client will be deprived of the advantage of London “silk” if his case is tried in the County Court. Lord Bramwell disposes of that argument very shortly. “If there is any disparagement or injury to the Bar for the benefit of the public, the Bar must undergo it; that is all.”
In other words, the Courts of the future must be made convenient to the public as well as convenient to the profession; and where interests clash the public interest must be considered before the professional interest. This looks when written down an obvious platitude, but the history of the efforts to obtain and improve County Courts since 1830 will convince the legal reformer that it is worth re-stating.
Some years ago I made some elaborate calculations from the Blue Books, the results of which were rather surprising even to myself. I investigated the figures of ten typical urban Circuits in the centres of industry and of ten typical rural Circuits in agricultural districts. I found that in the former Circuits in ten years there had been a large increase in business. Nearly £40,000 a year more was paid to the Treasury in fees, and more than £150,000 was the increase in monies collected for suitors. In the same ten years similar figures for the rural districts showed a marked decrease. When one compared the turnover of the ten urban Circuits as against the turnover of the ten rural Circuits, it was as ten to one. I wondered what a Harrod or a Lipton or a Whiteley would have done with these Courts if he had found in auditing their accounts over many years that ten of them were non-increasing in a business sense, and that the other ten were increasing; if he found that he drew £150,000 as an income from one set and £40,000 from the other set. Would he not consider whether there was not a class of business being done by the urban circuits worthy of special consideration and encouragement?
For what did these figures show? They showed on the one hand a stagnant and non-increasing business, and on the other a business increasing by leaps and bounds. What business man would hesitate to extend ten branch concerns capable of so great an improvement in turnover in the course of a few years? I am frankly an enemy to making the suitor pay for his law. I believe, as Lord Brougham did, in free law; but if the system is to continue, why should a suitor in Birmingham pay more for his law than is necessary in order that a suitor in Ambleside may pay less for his law than it costs?
The Courts are, no doubt, not paying concerns, but how far some Circuits are run at a profit it is impossible for anyone outside the Treasury to ascertain. There is no doubt, however, that the loss in small Courts is very great, and whether they are of any great value to a district in these days of postal facilities and cheap railway transit I have grave doubts. I have always thought that the Post Office might work a great deal of the pure debt-collecting business in connection with the County Court, if it were thought desirable. It would, to my mind, be a natural co-ordination of two public offices, and might adapt itself very well to the needs of rural districts. If a country debtor could pay his debt to the nearest post office, and get an official receipt there, many small Courts and offices would become wholly unnecessary, and with a post office cash on delivery system one excuse for giving credit would be removed.
Why one little town has a Court and another has none it is as impossible to say, as why one little pig went to market and the other little pig stayed at home. These ancient myths are part of our history, and any effort to dislodge them is rightly made difficult. But whilst the Courts of London and the Midlands and the North are overcrowded, there are actually ten Courts issuing less than 100 plaints each—their average is 57!—and thirty-two Courts with less than 200. Alston, in Cumberland, is the holder of the record. This Court issued twenty-seven plaints and four actions were heard. It heard two judgment summonses, and made a commitment order in one. And the Court collected sixteen pounds in fees. To cope with this annual business the Judge sat once and the Registrar three times. It will take a long time to persuade these small communities that it is necessary they should give up conditions such as these to which they have become accustomed. I think it would be more readily done if the districts that had no real use for a County Court or an Assize Court were only allowed to retain them on payment of what they cost to the community.
The endeavour to bring justice to the poor man’s door is more praiseworthy than practical. I remember explaining to a collier’s wife that her husband must attend with her, and adjourned the case to a Monday for that purpose. Monday is often kept by colliers as a saint’s day. “Eh!” she replied. “It will be very onconvanient. My maister winna like coming on a Monday. Besides, it’s my weshing-day.”
I expressed my regret, but said it must be.
“Well, it’s very onconvanient our coming here. Couldn’t yo call?”
The idea of calling personally on the litigants—especially in these days of motor-cars, when every registrar is probably an expert chauffeur—is a very attractive one, and not much more absurd that the present system of sending Judges to Courts that have no real use for them.
But from my point of view, the difficulties of dealing with the smaller Courts, if they exist, should not hinder the development of the larger Circuits. It is clear that the problems of providing adequate Civil Courts for Central Wales and Norfolk is not the same as the problem of providing similar tribunals for Manchester, Birmingham, and Leeds. I have shown that there are a large number of districts where the Courts are increasing yearly in usefulness and in public favour, and there is, I think, a strong case that from a business point of view Circuits that are dealing with large amounts of work should be specially considered.
I do not think there will be any great difficulty in dealing with the great urban centres when the legislature makes up its mind to make the County Courts district Courts working directly in touch with the High Courts. No doubt it will mean the providing of money for further and better equipment, but it has certainly to come about, and there are signs that it is being faced. The problem of the rural Courts is more difficult, but I think the grouping of several Courts under one resident permanent registrar with extended powers and allowing him to gather together in one place a day’s work for the Judge who is to travel his Circuit with a business regard for the actual wants of litigants from time to time is a statement of the general lines upon which reforms can be carried out. The rural Courts will always be costly to the community, out of all proportion to the services rendered, but they are necessary and the expense must be borne; the urban Courts, on the other hand, might be made to pay their way, and might be of far greater service to the business communities around them than they already are.
It is difficult, of course, to write upon such a subject without personal bias, and it has been my lot to take an official position for the sake of its comparative leisure, and to find that leisure taken away by successive Acts of Parliament without compensation for disturbance. Still, experience of legal reform leads me to believe that I cannot be writing this with any personal motive, for I cannot hope to be presiding in any County Court in the latter part of the twentieth century, when, according to recorded precedent, such reforms as I propose will be about due.
Why, then, do I commend the future of the County Court to the attention of the legal reformer? Because I see in the County Court, and in that Court only, a growing and popular tribunal favoured by the business men of the country. Because in that Court there is a crying abuse calling aloud for reform, namely, imprisonment for debt, which abuse, when abolished or mitigated, will release Judges from odious duties, and give them time for more honourable services. Because in great urban centres there has long been a demand for continued sittings, which the High Court has been unable to comply with, but which the County Court already satisfies to some extent, and with reasonable equipment could supply in full measure. The record of the County Courts in the last fifty years is a very remarkable one. In the face of keen professional opposition, Parliament has given them year by year more important and onerous duties. These have been carried out in the main to the satisfaction of the business man in the business centres. It is because the urban County Courts are live business concerns, carrying on their business to the satisfaction of their customers, that I believe in the future of the County Court.